Waiving Child Support : California Divorce & Child Support

Posted by Tim Blankenship on

Waiving Child Support : California Divorce & Child Support

Hi, Tim Blankenship here with divorce661.com. In this video we are going to address the question if child support can be waived in a California divorce. The question is can you waive child support in a divorce.

Let me set up the scenario for you. Let’s assume that you’re going through a divorce and the other spouse is not participating and you don’t want to pay or receive child support for one reason or another.

When that happens what I sometimes see people do when they’re trying to do their own divorce is they will put in their judgment, their divorce judgment, final paperwork you turn into the court, and they’ll say no child support requested. You can’t do that. You can ask for there not to be child support but you cannot say no child support.

The courts going to want to know based on incomes of the parties what the child support should be. What the guideline amount should be. Now, you can get away with not having child support, but there’s a specific way to do that, and that way is to have the jurisdiction reserved over the issue of child support.

So while you can’t say no child support, you can say the court will retain jurisdiction for future determination over child support, and that’s the way you can get out of paying for child support.

I’m going to do another video as well, probably right behind this one to explain to you how you can ask for a ZERO support order even though child support may be ordered in a certain amount normally, based on income and time share. So make sure to watch that.

So just real quick recap, no you cannot waive child support. There has to be an order for support or you have to ask the court to retain jurisdiction over the issue of child support for your judgment to be approved on that issue. Tim Blankenship, divorce 661.com. If you have any questions just give me a call or you can go to my website for more information at divorce661.com. Thanks for watching.

Santa Clarita Divorce : STRS & PERS Pensions Must Be Listed On Judgment

Posted by Tim Blankenship on

Santa Clarita Divorce : STRS & PERS Pensions Must Be Listed On Judgment

Whenever you are going through a divorce in California, part of the process is first disclosing your assets and debts which will ultimately end up on a judgment or marital settlement agreement.

What a lot of people think is that when an asset is in their name only, that it does not count or does not need to be listed. This happens a lot of times when people call me and say they have no assets or debts “together”. What they are saying is that they do have assets and debts, but that they are only in each of their names, and not together.

(Watch video or continue reading below)

But what they are not aware of is how California’s community property laws work. Essentially, community property is anything that was acquired during the marriage (with some exceptions). What this means in plain English is that it does not matter in whose name an asset or debt is in, it depends on when it was accrued.

So speaking of pensions and STRS and PERS specifically, this is where people say they have no assets to divide, but then later i find out they have pensions. When I ask why they didn’t state this, they say, “we’ll it’s only in my name”. You can see how this is not correct.

Here is a few issues. First, you may think you don’t have to disclose a particular asset because it is in your name only. That is not how it works. When you do your disclosure, you are listing all assets and debts, community and separate.

Second, if you don’t list your assets and debts on your judgment or marital settlement agreement, then you have no court order stating who is keeping that particular asset or debt and leave yourself exposed for future issues.

Third, is specific to STRS and PERS. We had a client who forgot to list his STRS pension on his disclosures and therefore it did not end up on his judgment. When he went to call STRS (State Teacher’s Retirement System) they said that his STRS pension was not listed on the judgment. The issue this caused is that they required language in the judgment that addressed his STRS pension. Specifically, they needed the judgment to say he was being awarded 100%. Otherwise, they were not going to be able to disburse his pension upon retirement and would not allow him to change beneficiaries. You can see how this is problematic.

This was all fixed by us filing a stipulation stating he was awarded his STRS pension, but this is an issue that could have been avoided.

The short story is that if you have assets and debts, no matter in whose name, you should disclose and those assets and debts need to be confirmed to one party or the other. This will keep you safe and help avoid problems down the road.

Santa Clarita Divorce : Do I Have To Be Separated Before Filing For Divorce : Divorce 661

Posted by Tim Blankenship on

Santa Clarita Divorce : Do I Have To Be Separated Before Filing For Divorce : Divorce 661

When you call to speak to me about using our services for your Santa Clarita Divorce, one of the questions I will ask you is, “if your are still living together or if you have separated already”.  For those that say they are already living apart will often say, “we are separated, but not legally”.

This is an area which causes a lot of confusion for people. They think either one of two things. First, they think that they have to be physically separated for it to count as a separation. Second, they think they have to become legally separated first as a condition before filing for divorce.

So let’s discuss these two issues.

Do I Have To Be Separated Before Filing For Divorce?

The answer is NO. While in some States, you have to by physically separated, in California, you do not need to be physically separated for any specific period of time. In fact, you do not have to be separated at all prior to filing your Santa Clarita Divorce.  If you are not physically separated you will simply use the date you are filing your Santa Clarita divorce as the date of separation.

Do You Have To Be Legally Separated To File For Divorce?

Again, NO! There are people that believe that they have to first file for Legal Separation first, before they can file for divorce.  This is not the case. You don’t file for legal separation and then file for divorce. I have had people do that before contacting our Santa Clarita Divorce service simply because they thought you had to first file for legal separation.

If you find yourself in the situation where you already filed for legal separation and now realize you want to divorce, there are two situations you may find yourself in.

  1. Filed For legal separation, but case not finalized – There is good news here. If you filed for legal separation and your case is not finalized and judgement has not been entered, you can filed an amended Petition and request your case become a divorce. This is good because you won’t have to file a new divorce case with the court and have to pay the court fees again.
  2. Filed for legal Separation and case IS finalized – If you filed for legal separation and your legal separation case has already finalized, you can still obviously get divorced, but you will have to start a new case. The good news is that you won’t have to revisit all the issues related to custody and property because that would have all been handled in the legal separation case, but you will have to pay the court fees and start a new case altogether.

Santa Clarita Divorce : Common Mistakes When Filing Your Santa Clarita Divorce : Divorce 661

Posted by Tim Blankenship on

Santa Clarita Divorce : Common Mistakes When Filing Your Santa Clarita Divorce

I see several issues that continue to come up with people trying to file their own Santa Clarita Divorce. (Video at bottom)

Common Mistakes When Filing Your Santa Clarita Divorce

1.  Names Must Match On Summons & Petition – Using a different version of your name on the Divorce Summons & Petition. The names your use on your summons must match that on the petition. So, for instance. If you use Tim Blankenship on the Summons, use Tim Blankenship on the Petition.

What we see people doing, who are trying to do their own Santa Clarita Divorce is use different variants of their name throughout their divorce paperwork.  Here is an example. They start with Tim Blankenship and then in some places write, Tim S. Blankenship and in others Timothy Blankenship. This usually happens when people are filling out the divorce paperwork by hand or typing it into fillable forms.

2.  Not Using A Date Of Separation – Another issues I see is that people doing their own Santa Clarita Divorce is putting down a date of marriage, but not putting down the date of separation. This is cause for your divorce case to be rejected.

You need to have a date of separation on your divorce petition. “But Tim, we are still living together and not legally separated!” Doesn’t matter, you need to have a date of separation.  In fact, most of my clients are still living together at the time of filing for divorce and there is no requirement that you actually be separated prior to filing for divorce as it is in some states.

Here are some examples of what you can use as the date of separation for your Santa Clarita Divorce. (And yes, you can use a date in the past). You can use the day you discussed with your spouse that you wanted a divorce. You can use a day that you started sleeping on the couch. You can use a date of incident such as when your spouse perhaps did something that caused you wanting a divorce. If nothing else makes sense, then we just use the date of the filing of your divorce as your date of separation.

3.  Requesting Your Name Changed On The Divorce Petition – Okay, I get asked all the time, “can i choose a name” where is asks if you want to restore your former name.  The answer is no. As part of the divorce, you can only revert back to your former, maiden name.

The reason is that if you just choose any old name, and when you go to say Social Security or the DMV, they are going to check that it is, in fact, your former maiden name. The only way to choose a name of your choice is to file a legal name change with the court.

4.  Using An Address For You Minor Children Outside of California – This does not happen too often, but often enough to address it. If you have children, you need to also file a form called a UCCJEA which is form FL-105. The courts want to know where your children have lived for the last 5 years. You children have to be living in California in order for the state to have jurisdiction to make orders for child custody.

If you state that your children are living out of state, you will not be able to have custody orders in California. If you find yourself in this situation, even if you list your children on the divorce petition and then try to turn in your divorce judgment to the court, they will reject your judgment and tell you that the court does not have the jurisdiction to make orders for child custody and that you need to remove the custody portion from your judgment. This is a problem if you need custody orders as part of your Santa Clarita Divorce.

If you need assistance with your Santa Clarita divorce make sure to give us a call. We have local offices right here in Santa Clarita and can assist you with finalizing your divorce.

Using Substituted Service Of California Divorce Papers

Posted by Tim Blankenship on

Using Substituted Service Of California Divorce Papers

This video discusses what service by substituted service, when you would use it and how it works. Substituted service of your California divorce papers is usually a last resort and can only by achieved in certain circumstances.

There are several ways to serve a divorce petition in California. First, you have “personal service” This is where you have someone other than yourself personally deliver the divorce petition to the person being served and they are handed the papers. This can be a friend, relative or in many cases a 3rd party process service that can handle this for you.

Another route in amicable divorce cases is to simply have the the other party sign a Notice Of Acknowledgment of Receipt. This is an easy way to let the courts know that the other party was served or in this case, that they have acknowledged receiving a copy of the filed divorce papers.

But what happens when the person you are trying to serve is either unavailable or, what is more likely, trying to avoid being served?

We have this happen once and a while and the only way to serve them is usually by substituted service.

Substituted service, often referred to as “sub-served” is the practice of serving someone other than the person being served. So you are serving someone such as another family member or even a person of a business they work at such as their employer or even a front end person like the receptionist.

I can think of two such instances that just this week we had to serve by substituted service. The first was a Respondent to the divorce case who was trying to avoid being served for whatever reason. We found out where he worked (on Facebook no less) and were able to sub-serve him there. In this case we were able to serve his boss once it was determined that he did work there.

Another instance was a young man who was purposely avoiding being served to be a nuisance. The servers tried to serve him several times, and despite being able to hear him in the house and garage, he would not present himself to be served.

In this case, they went back late at night, when his parents were home and served his parents who verified that he lived there.

No there are specific rules you have to follow in order for a sub-service to be valid with the courts. The short story is that you have to make several documented attempts at serving and only then can you sub serve. But even then, you have have to write a special declaration that explains the steps you took to actually serve the other party. The court has to approve your steps in order for the substituted service to be valid.

When we know service may possibly be an issue, we always use a 3rd party professional process server as they know how to properly document the substituted service of the divorce papers in a way that will be approved.

California Divorce Judgment Rejected? This Is Why!

Posted by Tim Blankenship on

There are many reasons your California Divorce judgment paperwork will be rejected. In fact, there are 3 pages of reasons why your California Divorce judgment may be rejected.

But the main reason your judgement papers get rejected is because when you turn in your divorce judgment package to the court, this is the first time anybody is actually reviewing your documents. (Continue reading below video)

 

When you turn in your divorce judgment, that is the first time the court is reviewing even your initial court documents such as your summons and petition and whether you know it or not, if you did something wrong on the divorce petition, you wouldn’t know it until you turned in your judgment.

Now, while your divorce judgment can be rejected for many reasons, generally the court will review and provide you with a list of reasons why your divorce judgment paperwork is being rejected.

But, they won’t tell you what the correction is. They will just tell you what is wrong with it.

And for the first time in my life, I have seen a reject sheet that didn’t even provide the reasons why the judgment was rejected. If you watched the video, i showed you a reject sheet from a clerk that basically said the paperwork was so messed up that they weren’t going to go to the trouble of providing all the reasons why it was being rejected.

In fact, the divorce judgment reject sheet simply said that there were too many issues and many missing documents and to seek legal advice on how to prepare their divorce.

That is exactly what this person did. They hired us to review and correct and finalize their divorce case. Now, while the clerk was correct and there were many missing forms and errors, i just thought it was so lazy of the clerk to not even provide the reasons why it was rejected.

If you need assistance with your divorce judgment paperwork please give us a call. Correcting California divorce paperwork is our speciality. Or, just save yourself some trouble and hire us before you ever file a single divorce form.

You will save yourself a lot of wasted time and grief.

How To Request Zero Child Support Order For California Divorce

Posted by Tim Blankenship on

How To Request Zero Child Support Order For California Divorce

Whether through my full service divorce clients or through our online do-it-yourself tutorials at California Divorce Tutor, it is a popular request that people do not want to have child support as part of their California divorce. Mostly people say they want to address the needs of the children, including child support, outside of  court just like they did when they were married. Essentially, they don’t want a child support order stating what they have to pay.

 

With child support and requesting that there be no child support, the thing that you are up against is that child support is mandatory in California. However, there is a way to package up your California divorce to request no child support as part of your divorce. You just have to do it a certain way.

So this video will show you what forms and what language you need to in order to achieve a no child support order divorce.

We provide both a full-service divorce solution across California or you are trying to save some money and have plenty of time on your hands, you can always elect to use our do-it-yourself videos at California Divorce Tutor. We have a solution for everyone.

 

My Anti-Valentine’s Day 2017 & Dinner At Whole Foods

Posted by Tim Blankenship on

My wife and I have been married for 22 years and while it has not been all rainbows and unicorns we have stuck it out with each other. I don’t mean for that to sound negative, but you know what I mean.

One thing my wife and I both dislike is what we called “Forced Holidays”. This would include Valentine’s Day!

I get my wife flowers and we go to dinner often, probably more often that we should. So I don’t like it when I am told that on a certain day each year i need to go out to dinner with the masses on a weekday (usually) and purchase over priced flowers just so we can post pictures on Facebook of the flowers and show all our friends how awesome our marriage is.

Yeah, no. I told my wife we would not be doing that this year…. And she agreed.

I even posted on Facebook how i felt about it.

Pre Valentine’s FB Post

So I took it a bit further.

This year we had:

  • No Flowers
  • No Card
  • No Dinner (sort of)

So we agreed that we would disagree with Valentine’s Day 2017 and instead put a little money away. Instead of going on a forced dinner and spending money on overpriced flowers we just put a few hundred dollars in our savings account. The money we would have probably spent on dinner and flowers.

My wife did surprise me, however, in that she came home from running errands brought us some sushi from Whole Foods.

So that was it for us. Sushi from Whole Foods and in bed watching a movie by 9. That is my kind of evening.

California Divorce Ex-Parte Must Be True Emergencies

Posted by Tim Blankenship on

The way Divorce Ex-Parte hearings are being decided are changing. I am seeing a trend where Judges are making sure that the divorce Ex-Parte hearings are true emergencies.

I have sent several clients down to court on Divorce Ex-Parte hearings lately and I have noticed a trend. The judges are being more critical of the Ex-Parte hearings and if they are not true emergencies, they are denying the Ex Parte hearing.

 

What is troubling about this is that the bar for being a true emergency is getting higher and higher. Before, financial difficulties were considered emergencies. The last client i sent in Ex Parte was told by an attorney that they had a good Ex-Parte divorce issue in that they were about to be evicted because the spouse moved out of the rental home and stopped paying the rent while the wife was at home with the 2 kids and coming up on Christmas is facing eviction. Despicable!

In any case, we sent her down on emergency Ex Parte motion to get her rent caught up and the judge denied it flat out.  Even the attorney that referred this client to us was shocked that they did not consider the matter since she was about to be evicted.

I make a joke that unless there is “blood on the floor” which my mom would say while telling a story and she realized nobody was listening, the ex parte hearings are not being heard.

Additionally, before the judge would deny the ex parte hearing, but then set the matter on the regular calendar, now they are denying the ex parte hearing and telling the party who filed to file their case on the normal calendar.

The issue here is that if the judge continued the ex parte hearing and set a new date, the court fees the person paid would be considered paid. By the court denying the ex parte hearing and not continuing the hearing or setting is on the calendar forces the party filing the ex parte to pay the filing fees twice.

This is not fair.

Let me explain… So you have an emergency you feel warrants an ex parte motion. You file the motion Ex parte and it is denied. You paid your fees for that hearing, but because the judge felt it did not warrant an emergency, you have to re-file completely and pay the fees again which can be as much as $115 each time.

Sometimes, just not fair…

We handle Request For Orders both on the regular calendar and Ex-Parte. Please call for a free phone consultation to discuss your situation.

California Divorce Judgment Rejected | FL-141 Missing Or Wrong

Posted by Tim Blankenship on

California Divorce Judgment Rejected | FL-141 Missing Or Wrong

Having your California divorce case rejected is never fun. However, this article will discuss what to do if your California divorce judgment is rejected for the following reasons listed on the FAM-001.

Judicial Council form FL-141, Declaration Regarding Service of Declaration of Disclosure & Income and Expense Declaration [revised July 2013]

  1. must be submitted by the Petitioner as to the Preliminary Declaration of Disclosure (the Preliminary Declaration cannot be waived). See Family Code §2104.
  2. must be submitted by the Respondent as to the Preliminary Declaration of Disclosure (the Preliminary Declaration cannot be waived). See Family Code §2104.
  3. must be submitted by the Petitioner & the Respondent as to the Final Declaration of Disclosure & Income and Expense Declaration; in the alternative, the parties may stipulate to a mutual waiver of the requirements of 2105(a) concerning the final declaration of disclosure by execution of a waiver under penalty of perjury by separate stipulation by filing Judicial Council form FL-144, Stipulation and Waiver of Final Declaration of Disclosure [revised January 2007]. Please refer to Family Code §§2105, 2106.

This is a common error and is easy to fix. Most people forget about the form altogether, but when the form is submitted to the court the biggest problem is that people forget to fill in the date.

You see where it says on paragraph one that either the Petitioner or Respondent has served the other party their preliminary declaration of disclosures?  And then there is some white space between paragraph one and paragraph two? There is where you are supposed to put the date that the disclosures were served.

As usual, it is a poorly formatted form and just begs for mistakes to be made. Thankfully it is an easy fix, but is cause for rejection of your California divorce judgment.